Closing Arguments

If you’re tired by speculation about what the Supreme Court decision on ObamaCare is going to be, I don’t blame you. But I would observe that the CW has definitely been in flux the last few days, with a significant comeback for hopes the Court will uphold ACA, and for the secondary belief that the law can survive–both constitutionally and functionally–even if the mandate is struck down.

I’d mention just two notes of caution, both raised by our new national celebrity, SCOTUSblog’s veteran Court-watcher Lyle Denniston, in his final pre-decision post:

The first is that we’re not likely to see the judicial equivalent of the Vatican’s release of white smoke when a new Pope has been selected, much less the dramatic and definitive appearance of the new Pontiff very soon thereafter. Says Denniston:

Leaving aside the ill-informed guessing and the petty blaming, there is still an actual decision to be made, and it may not be very easy — at first glance on Thursday – to tell just what the Court has decided. No one outside the Court knows, for example, whether there will be one opinion that controls the multiple outcomes, or multiple opinions and mixed voting patterns, potentially complicating the result.

I’m probably not the only one thinking back to the strange night when Bush v. Gore was handed down, and–with the exception of Judy Woodruff–most reporters had a very hard time understanding what the decision actually meant. This decision involves infinitely more complex issues and an almost endless array of options for the Court.

On the question of what might rise or fall with the mandate, and the whole “severability” issue, Denniston notes the clear reluctance of the Court to wade into the thicket of decisions necessary to separate the wheat from the chaff:

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress? During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

Some think that means the Justices would just happily decide the mandate falls alone and leave the rest of the law alone. But it could easily cut in the opposite direction, as Sean Trende argued cogently today. The legislative history of ACA, and the case made by the government in oral arguments, are just loaded with data about the interlocking nature of the mandate and other key provisions of the law. Just because a lot of progressive health care writers panicked about the likely demise of the mandate have concluded late in the game that the law would work just fine without it won’t necessarily have much pull with a Supreme Court that may have made this decision weeks ago.

So the decision may be difficult to discern at first, and today’s CW’s isn’t necessarily superior to yesterday’s. Now we’ll just have to wait and see, unless someone has breaking news that a bootleg copy of the decision just showed up at some bar where law clerks drown their sorrows.